BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority has not upheld a complaint about a 1 News item looking at the housing crisis on Waiheke Island. One affected resident who was interviewed said he ‘[felt] like a gypsy wandering around, living out of suitcases and boxes’. The complaint was that the use of the word ‘gypsy’ was derogatory and evokes prejudicial biases towards the Roma community. While the Authority has previously acknowledged the potential harm in the use of the word, in this particular context it did not outweigh the interviewee’s right to express himself and describe his experience. This expression and the item as a whole carried high value and public interest and did not warrant regulatory intervention or restricting the important right to freedom of expression.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  A 1 News item on 13 February 2021 reported on the housing crisis on Waiheke Island. It was introduced:

Newsreader:   A dire housing crisis is seeing cars full of people camping by beaches and in parks on Auckland's Waiheke Island. Others have fled the Hauraki Gulf Islands for life back on the mainland.

Reporter:        Dawn breaking on Onetangi Beach, unveiling the darker side of this island paradise - vehicles full of sleeping people who have nowhere else to go. Rising house prices are driving demand well beyond supply here.

[2]  The item included excerpts from interviews with affected Waiheke residents. One interviewee who had been forced to move off the island due to the rising living costs, described his situation on camera:

'At 51, I’m effectively homeless and it's not a great feeling. I feel like a gypsy wandering around, living out of suitcases and boxes.'

The complaint

[3]  Garth Cant complained the broadcast breached the discrimination and denigration standard, as the word ‘gypsy’ is derogatory and evokes prejudicial biases towards the Roma community. He submitted:

• The word falls within the same category as the ‘N’ word which denigrates African Americans, or the ‘E’ word which denigrates Inuit in Canada and Alaska.
• ‘The continued use of [the word] is offensive to the Roma community. The small size and low profile of the Roma community in NZ does not lessen the offence.’
• The editorial team, who knew of the offensiveness of the word (from an earlier Authority decision¹), has a ‘duty of care’ to ‘protect’ the interviewee who may not have been aware the word was offensive.
• In its earlier decision, the Authority found the term used in that particular context was capable of embedding existing negative stereotypes and devaluing the reputation of the community, and encouraged discrimination against that community.²

The broadcaster’s response

[4]  TVNZ apologised to the complainant for the offence the broadcast may have caused, but did not uphold the complaint for the following reasons:

• This particular context can be differentiated from that considered in the earlier Authority decision. In this instance, the interviewee ‘was expressing himself in his own words, and there is high value in reporting the words of participants as they are spoken, without undue editorial or censorial interference.’
• In support of this point TVNZ cited another decision in which the Authority found:³
  
  …audiences should accept that in a diverse society such as New Zealand, people may communicate differently. The expressions subject to complaint represented an authentic use of language by the interviewees featured in the items, to convey their response to the issues discussed.

• The interviewee’s intention ‘was to characterise the itinerant nature of his present lifestyle. He was not referring to Romani people and there was no mention of them in the broadcast.’
• ‘[The interviewee] did not confer any negative impression on groups to which the term may be associated.’

The standard

[5]  The discrimination and denigration standard⁴ states broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational statues or as a consequence of legitimate expression of religion, culture or political belief.

[6]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment; and ‘denigration’ as devaluing the reputation of a particular section of the community.⁵

[7]  The standard is not intended to prevent the broadcast of material that is factual, a genuine expression of serious comment, analysis or opinion, or legitimate humour, drama or satire.⁶

Our analysis

[8]  We have watched the broadcast and read the correspondence listed in the Appendix.

[9]  Our task is to weigh the important right to freedom of expression against the potential harm caused by the broadcast, in this case applying the discrimination and denigration standard. We may only intervene and uphold a complaint where the level of harm justifies placing a reasonable limit on the right to freedom of expression.⁷

[10]  This is a task we have found challenging. Mr Cant’s complaint is genuine and well-reasoned, and we acknowledge his concerns.

[11]  The Authority’s role is to reflect current, and evolving, community attitudes, including towards the acceptability of language. Although in our decisions we may raise awareness about changing views towards particular words and phrases, we are cautious about going too far or attempting to lead the way. We are limited to applying the relevant standard and guidelines, and we pay careful attention to what our research into community attitudes tells us to ensure we are not out of step.⁸ Context is also vitally important in determining what is acceptable.

[12]  Weighing all of these factors in the particular circumstances of this case, we did not find harm that outweighed the right to freedom of expression. We explain our reasons below.

Discrimination and denigration

[13]  The Roma or Romani community is a relevant section of the community for the purposes of the standard. The key issue is whether, in including the word complained about, this news item encouraged discrimination against, or denigration of, that community.

[14]  In discrimination and denigration complaints, a high level of condemnation, often with an element of malice or nastiness, is usually necessary to conclude a broadcast encouraged discrimination and denigration in breach of the standard.⁹ However, as noted by the complainant, we have recently acknowledged in a small number of cases (including one considering the use of the term ‘Gypsy Day’), in some circumstances the use of terms that have the effect of embedding existing negative stereotypes may meet the threshold for finding a breach of the standard, whether or not there is intent or malice behind them.¹⁰

[15]  In our previous decision, we found the use of the phrase ‘Gypsy Day’ in a news item was derogatory, evoking prejudicial biases towards the Roma community.¹¹ We recognised it was capable of embedding existing negative stereotypes against Roma community members. Important contextual factors relevant to our decision in that case were:

• The phrase was used by the newsreader.
• While the phrase had been widely used colloquially in a farming context, the use of the phrase by a broadcaster in a news report had the potential to cause harm by normalising its use and reinforcing negative stereotypes.
• The broadcaster had full editorial control, and could have chosen to use an alternative phrase, ‘Moving Day’, which was becoming increasingly recognised (and used) in the farming industry as more appropriate terminology.

[16]  We have carefully considered our reasoning in that case, and in our view the present case is distinguishable.

[17]  Here, ‘gypsy’ was used by an interviewee describing his situation and experience in his own words; it was a genuine expression of his feelings.¹² Guideline 6c to the standard explicitly recognises it is not intended to prevent the broadcast of a genuine expression of opinion.¹³ The term was not used as an invective against the Roma community and did not contain any element of condemnation. The item as a whole also contained high value and public interest, telling the stories of those affected (being forced out of their homes due to rising property prices), and conveying their personal experiences.

[18]  It is for these reasons we find, in this particular context, the right to freedom of expression outweighed any potential harm under the discrimination and denigration standard. Requiring the broadcaster to edit the interviewee’s comments, where they carried high value and conveyed his feelings and experiences in his own words, would not in our view be a reasonable or justified restriction of free speech.

[19]  We therefore do not uphold this complaint.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

15 July 2021

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Garth Cant’s original complaint to TVNZ – 25 February 2021

2  TVNZ’s decision on the complaint – 23 March 2021

3  Mr Cant’s referral to the Authority – 30 March 2021

4  TVNZ’s response to the referral – 13 April 2021

5  Mr Cant’s final comments – 9 June 2021

6  TVNZ confirming no further comments – 10 June 2021

¹ Cant and Television New Zealand Ltd, Decision No. 2020-071
² Cant and Television New Zealand Ltd, Decision No. 2020-071 at [13]
³ McCaughan and MediaWorks TV Ltd, Decision No. 2016-062 at [11]
⁴ Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
⁵ Guideline 6a
⁶ Guideline 6c
⁷ Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁸ Our recent Litmus Testing research tested five decisions under the discrimination and denigration standard, including the case referred to in this decision considering the use of the phrase ‘Gypsy Day’. See Broadcasting Standards Authority (24 June 2021) “Litmus Testing 2021” <www.bsa.govt.nz>
⁹ Guideline 6b
¹⁰ Waxman and Television New Zealand Ltd, Decision No. 2020-042 at [12]
¹¹ Cant and Television New Zealand Ltd, Decision No. 2020-071 at [13]
¹² Guideline 6c. See also Wilton and Discovery NZ Ltd, Decision No. 2021-001 at [14] and [15]; and McCaughan and MediaWorks TV Ltd, Decision No. 2016-062 at [11]
¹³ Guideline 6c